The President’s Recent Signing Statements

I wasn’t planning on blogging the story in the print edition of today’s New York Times (p. A15), reporting that the President may issue a constitutional signing statement “asserting that [the President] has the constitutional power to disregard . . . restrictions” contained in recently enacted legislation that would restrict his ability to transfer detainees from Guantanamo. There has been a fair amount of leaking during this Administration undertaken in an apparent effort to influence decisionmaking, and I assumed that this leak (originally reported by ProPublica) was made to embarrass the White House into foregoing the issuance of such a signing statement. I figured that there was time enough to cover this story if the President actually issued such a signing statement.

But the following statement in the story caught my eye:

Early in his presidency, [President Obama] issued several signing statements that made relatively uncontroversial challenges. But he has not issued any since June 2009, when lawmakers of both parties expressed outrage over a statement he attached to a bill saying that he could disregard requirements imposed on certain negotiations with international financial institutions.

The online edition of the story included a hyperlink to a January 2010 article reporting that the Administration had adopted a new policy and that henceforth, the President would not issue signing statements “repeating claims of executive power that the White House has previously voiced.” I discussed that story here.

For the record, the President has issued constitutional signing statements since June 2009. He issued a couple just this fall, this one about the Intelligence Authorization Act for FY10 (which I discussed here) and this one about the Coast Guard Authorization Act, of all things. (The text of the most recent signing statement, which I haven’t blogged previously, is reproduced after the jump.)

The President’s recent constitutional signing statements are very similar to ones issued by both Presidents Clinton and George W. Bush, although he’s issued many fewer than either. Although the Intelligence Authorization Act signing statement touches on a theme that that President Obama has addressed in previous signing statements (limits on Congress’s ability to require the Executive Branch to turn information over to it), in most respects, both address concerns that he personally has not voiced in previous signing statements. Thus, they appear consistent with the policy reported in January 2010. But it’s simply not the case that the President hasn’t issued any signing statements since June 2009.

UPDATE: The Times is now reporting that the President’s aides are leaning against a signing statement. As I indicated, I think the link may have helped them lean in that direction, which I suspect was the motivation for it.

Another interesting development is that the ACLU has written a letter to the President “urg[ing]” him “to direct all federal agencies with instructions that the restrictions [on transfer of Guantanamo detainees] do not materially restrict the ability of DOJ, DHS, or the State Department to effect transfers from Guantanamo to the United States or to foreign countries,” because the funding restrictions literally only apply to the use of Department of Defense funds. The president could do so, of course, through a signing statement. The ACLU has a point, but this illustrates a corollary to Kerr’s Rule, which is that people’s enthusiasm for relying on technical legal distinctions is directly proportional to whether it achieves a policy goal they favor. I can’t imagine they’d embrace the distinction if Congress had in 2007 prohibited DoD from using its appropriated funds to engage in “enhanced interrogation,” for example.

Section 818 of the Act requires the Comptroller General to determine whether it is feasible to deliver securely a transportation security card to an approved applicant’s place of residence. If such a determination is made, the Secretary of Homeland Security (Secretary) would be required to implement a process that allows for such delivery. This provision would impermissibly vest authority in the Comptroller General, a congressional officer, to bind the Secretary in the performance of an Executive function. Therefore, the Secretary will need to treat the Comptroller General’s findings as advisory and nonbinding.

Finally, certain provisions in section 401 may vest significant authority in the Coast Guard Chief Acquisition Officer, who is not appointed in conformity with the Appointments Clause of the Constitution. The Executive will therefore need to construe these provisions as requiring approval of any exercise of significant authority by a supervisor who is an officer of the United States.